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Representation - Lawyers - Representation Where Litigation Guardian. Van Every (Litigation guardian of) v. Findlay
In Van Every (Litigation guardian of) v. Findlay (Ont Divisional Ct, 2025) the Divisional Court allowed an appeal, this from an order denying the defendant original law firm's motion to remove the current law firm as counsel.
Here the court considers conflict of interest where counsel is acting for a party under disability:The Respondent is a Party Under Disability
[35] This issue is related to the first point in respect of the scope of the conflict. The Respondent is a party under disability. Counsel for the Appellants argues that, as a result, the litigation guardian should not be permitted to waive the Respondent’s right to independent counsel. In support of this position, counsel directs our attention to the reasoning in Aleksa v. Henley, 2017 ONSC 1117. In that case, the Court determined that the guardian’s waiver was insufficient to eliminate the appearance of a conflict. The underlying basis for this approach can be found in the caselaw under r. 7.05 of the Rules of Civil Procedure. That case-law reflects the need to protect parties under a disability from other people, including unscrupulous representatives and family and friends who mistakenly believe that they are acting in the best interests of the person under disability: see, for example, Weidenfield v. Ontario (Education) (2007), 53 C.P.C. (6th) 97 (Ont. S.C.).
[36] On a removal motion such as this, the fact that a party is under a disability is a factor that the Court must turn its mind to in determining whether counsel should be removed. The Court’s parens patriae jurisdiction requires the Court to protect the interests of persons under disability in situations where the Court would not be required to protect the interests of a regular litigant. Decisions in respect of people under a disability must be considered through the lens of their best interest. Parties under disability are different from the usual litigants, where a waiver of counsel may be more persuasive. . A.H. v Toronto District School Board
In A.H. v Toronto District School Board (Div Court, 2023) the Divisional Court noted that a litigation guardian must be represented by counsel [R7.05(3)]:[2] At a case conference on March 2, 2023, the litigation guardians were directed to retain counsel, as required under Rule 7.05(3) of the Rules of Civil Procedure. ... . Haynes v. Canada (Attorney General)
In Haynes v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR brought by an employee with autism, here of an ESDC staff investigation. Here, the court considers Rule R121 of the Federal Court Rules, which requires that "a party who is under a legal disability" must be representated by counsel "(u)nless the Court in special circumstances orders otherwise". This case highlights the distinction between 'legal disability' and 'human rights disability':VI. The Failure of the Federal Court to Appoint a Solicitor to Act on his Behalf
[47] Another issue identified in Mr. Haynes’ memorandum of fact and law relates to the alleged failure of the Federal Court to appoint a solicitor to act on his behalf, as he submits was required by Rule 121 of the Federal Court Rules, SOR/98-106.
[48] Rule 121 provides that “[u]nless the Court in special circumstances orders otherwise, a party who is under a legal disability […] shall be represented by a solicitor”. As we explained to Mr. Haynes at the hearing, the reference to a party “under a legal disability” refers to someone who does not have the legal capacity to represent themselves. There is no suggestion that Mr. Haynes lacks the legal capacity to represent himself, and indeed, he provided the Court with fulsome and articulate submissions in support of his appeal. No error on the part of the Federal Court has thus been established in this regard.
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